Separation of powers
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The separation of powers principle functionally differentiates several types of
state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
power (usually law-making,
adjudication Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between th ...
, and
execution Capital punishment, also known as the death penalty and formerly called judicial homicide, is the state-sanctioned killing of a person as punishment for actual or supposed misconduct. The sentence ordering that an offender be punished in ...
) and requires these operations of
government A government is the system or group of people governing an organized community, generally a State (polity), state. In the case of its broad associative definition, government normally consists of legislature, executive (government), execu ...
to be conceptually and institutionally distinguishable and articulated, thereby maintaining the integrity of each. To put this model into practice, government is divided into structurally independent branches to perform various functions (most often a legislature, a judiciary and an administration, sometimes known as the ). When each function is allocated strictly to one branch, a government is described as having a high degree of separation; whereas, when one person or branch plays a significant part in the exercise of more than one function, this represents a
fusion of powers Fusion of powers is a feature of some parliamentary forms of government where different branches of government are intermingled or fused, typically the executive and legislative branches. It is contrasted with the separation of powers found ...
.


History


Antiquity

Polybius Polybius (; , ; ) was a Greek historian of the middle Hellenistic period. He is noted for his work , a universal history documenting the rise of Rome in the Mediterranean in the third and second centuries BC. It covered the period of 264–146 ...
(''Histories'', Book 6, 11–13) described the
Roman Republic The Roman Republic ( ) was the era of Ancient Rome, classical Roman civilisation beginning with Overthrow of the Roman monarchy, the overthrow of the Roman Kingdom (traditionally dated to 509 BC) and ending in 27 BC with the establis ...
as a
mixed government Mixed government (or a mixed constitution) is a form of government that combines elements of democracy, aristocracy and monarchy, ostensibly making impossible their respective degenerations which are conceived in Aristotle's ''Politics'' as a ...
ruled by the
Roman Senate The Roman Senate () was the highest and constituting assembly of ancient Rome and its aristocracy. With different powers throughout its existence it lasted from the first days of the city of Rome (traditionally founded in 753 BC) as the Sena ...
,
Consuls A consul is an official representative of a government who resides in a foreign country to assist and protect citizens of the consul's country, and to promote and facilitate commercial and diplomatic relations between the two countries. A consu ...
and the Assemblies. Polybius explained the system of checks and balances in detail, crediting
Lycurgus of Sparta Lycurgus (; ) was the legendary lawgiver of Sparta, credited with the formation of its (), involving political, economic, and social reforms to produce a military-oriented Spartan society in accordance with the Pythia, Delphic oracle. The Sp ...
with the first government of this kind.Polibius. (~150 B.C.). The Rise of the Roman Empire. Translated by Ian Scott-Kilvert (1979). Penguin Classics. London, England.


Tripartite system

During the
English Civil War The English Civil War or Great Rebellion was a series of civil wars and political machinations between Cavaliers, Royalists and Roundhead, Parliamentarians in the Kingdom of England from 1642 to 1651. Part of the wider 1639 to 1653 Wars of th ...
, the parliamentarians viewed the English system of government as composed of three branches – the King, the
House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
and the
House of Commons The House of Commons is the name for the elected lower house of the Bicameralism, bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of ...
– where the first should have executive powers only, and the latter two legislative powers. One of the first documents proposing a tripartite system of separation of powers was the Instrument of Government, written by the English general John Lambert in 1653, and soon adopted as the constitution of England for few years during
The Protectorate The Protectorate, officially the Commonwealth of England, Scotland and Ireland, was the English form of government lasting from 16 December 1653 to 25 May 1659, under which the kingdoms of Kingdom of England, England, Kingdom of Scotland, Scotl ...
. The system comprised a legislative branch (the Parliament) and two executive branches, the
English Council of State The English Council of State, later also known as the Protector's Privy Council, was first appointed by the Rump Parliament on 14 February 1649 after the execution of King Charles I. Charles's execution on 30 January was delayed for several ho ...
and the
Lord Protector Lord Protector (plural: ''Lords Protector'') is a title that has been used in British constitutional law for the head of state. It was also a particular title for the British heads of state in respect to the established church. It was sometime ...
, all being elected (though the Lord Protector was elected for life) and having checks upon each other. A further development in English thought was the idea that the judicial powers should be separated from the executive branch. This followed the use of the juridical system by the Crown to prosecute opposition leaders following the Restoration, in the late years of Charles II and during the short reign of James II (namely, during the 1680s).


John Locke's legislative, executive, and federative powers

An earlier forerunner to Montesquieu's tripartite system was articulated by
John Locke John Locke (; 29 August 1632 (Old Style and New Style dates, O.S.) – 28 October 1704 (Old Style and New Style dates, O.S.)) was an English philosopher and physician, widely regarded as one of the most influential of the Enlightenment thi ...
in his work ''
Two Treatises of Government ''Two Treatises of Government'' (full title: ''Two Treatises of Government: In the Former, The False Principles, and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown. The Latter Is an Essay Concerning The True O ...
'' (1690). In the ''Two Treatises'', Locke distinguished between legislative, executive, and federative power. Locke defined legislative power as having "the right to direct how the force of the commonwealth shall be employed" (''Second Treatise'', § 143), while executive power entailed the "execution of the laws that are made, and remain in force" (''Second Treatise'', § 144). Locke further distinguished federative power, which entailed "the power of war and peace, leagues and alliances, and all transactions with all persons and communities without utsidethe commonwealth" (''Second Treatise'', § 145), or what is now known as
foreign policy Foreign policy, also known as external policy, is the set of strategies and actions a State (polity), state employs in its interactions with other states, unions, and international entities. It encompasses a wide range of objectives, includ ...
. Locke distinguishes between separate powers but not discretely separate institutions, and notes that one body or person can share in two or more of the powers. For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution (''Second Treatise'', § 148). Locke believed that the legislative power was supreme over the executive and federative powers, which are subordinate. Locke reasoned that the legislative was supreme because it has law-giving authority; " r what can give laws to another, must need to be superior to him" (''Second Treatise'', § 150). According to Locke, legislative power derives its authority from the people, who have the right to make and unmake the legislature. He argues that once people consent to be governed by laws, only those representatives they have chosen can create laws on their behalf, and they are bound solely by laws enacted by these representatives. Locke maintained that there are restrictions on the legislative power. Locke says that the legislature cannot govern arbitrarily, cannot levy taxes, or confiscate property without the
consent of the governed In political philosophy, consent of the governed is the idea that a government's political legitimacy, legitimacy and natural and legal rights, moral right to use state power is justified and lawful only when consented to by the people or society o ...
(cf. " No taxation without representation"), and cannot transfer its law-making powers to another body, known as the
nondelegation doctrine The doctrine of nondelegation (or non-delegation principle) is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is wikt:exp ...
(''Second Treatise'', § 142).


Montesquieu's separation of powers system

The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher
Montesquieu Charles Louis de Secondat, baron de La Brède et de Montesquieu (18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher. He is the principal so ...
, although he did not use such a term but referred to the "distribution" of powers. In '' The Spirit of Law'' (1748), Montesquieu described the various forms of distribution of
political power In political science, power is the ability to influence or direct the actions, beliefs, or conduct of actors. Power does not exclusively refer to the threat or use of force (coercion) by one actor against another, but may also be exerted thro ...
among a
legislature A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial power ...
, an executive, and a
judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
. Montesquieu's approach was to present and defend a form of government whose powers were not excessively centralized in a single monarch or similar ruler (a form known then as "aristocracy"). He based this model on the
Constitution of the Roman Republic The constitution of the Roman Republic was a set of Uncodified constitution, uncodified norms and customs which, together with various Roman law, written laws, guided the procedural governance of the Roman Republic. The constitution emerged from ...
and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power. In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law. Montesquieu argues that each Power should only exercise its own functions. He was quite explicit here: Separation of powers requires a different source of legitimization, or a different act of legitimization from the same source, for each of the separate powers. If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke. Montesquieu actually specified that the
judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...
has to be real, and not merely apparent.Stephen Holmes, "Lineages of the Rule of Law", in Adam Przeworski & José María Maravall, eds., ''Democracy & the Rule of Law'', Cambridge Studies in the Theory of Democracy Series, № 5 (Cambridge University Press, 2003), pp. 19–61 at 26, . The judiciary was generally seen as the most important of the three powers, independent and unchecked.Przeworski 2003, p.13


Checks and balances

A government with checks and balances comprises more than one institution (often called a "branch" or "a power") exercising state power, and intends for each institution to have some influence over the other (interdependence). One institution may then "check" the other, or hinder it from using its power to pursue its ends – such as by declaring one of its actions a legal nullity or by questioning and removing one of its officers from their position. For instance, many parliaments consist of two houses; both of which are required to pass a bill before it becomes a law. A system of checks and balances also requires a balance of power between the institutions, so that the goals and actions of one are not completely determined by the other (independence); if both institutions were always in agreement by dint of one dominating the other, they would never challenge each other. In a democratic state, where all government institutions are constituted by popular elections or through appointment by an elected body, disagreement between institutions may arise from conflicting institutional identities, fostered by differing internal power structures, decision-making processes or appointment procedures. To continue the example of a bicameral parliament, members of the upper house of the United States Congress are each elected by the entire people of one federal state; whereas each member of its lower house is elected by their electoral district, a smaller and more localized constituency. A member representing a larger and more diverse base may require a broader coalition, composed of people with opposing interests, to win election, and is thus incentivized to moderate their stance; and vice versa. Each branch's efforts to prevent either of the other branches from becoming supreme form part of an eternal conflict, which leaves the people free from government abuses.
Immanuel Kant Immanuel Kant (born Emanuel Kant; 22 April 1724 – 12 February 1804) was a German Philosophy, philosopher and one of the central Age of Enlightenment, Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works ...
was an advocate of this, noting that "the problem of setting up a state can be solved even by a nation of devils" so long as they possess an appropriate constitution to pit opposing factions against each other. Checks and balances are designed to maintain the system of separation of powers keeping each branch in its place. The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate powers from the encroachments of the other branches. Under this influence it was implemented in 1787 in the Constitution of the United States separation of powers. In Federalist No. 78,
Alexander Hamilton Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Fathers of the United States, Founding Father who served as the first U.S. secretary of the treasury from 1789 to 1795 dur ...
, citing Montesquieu, redefined the judiciary as a separately distinct branch of government with the legislative and the executive branches. Before Hamilton, many colonists in the American colonies had adhered to British political ideas and conceived of government as divided into executive and legislative branches (with judges operating as appendages of the executive branch). James Madison wrote about checks (and balances) in Federalist No. 51:
Thomas Paine Thomas Paine (born Thomas Pain; – In the contemporary record as noted by Conway, Paine's birth date is given as January 29, 1736–37. Common practice was to use a dash or a slash to separate the old-style year from the new-style year. In ...
wrote about balances in ''
Common Sense Common sense () is "knowledge, judgement, and taste which is more or less universal and which is held more or less without reflection or argument". As such, it is often considered to represent the basic level of sound practical judgement or know ...
'': Importantly, Thomas Paine rejected the theory that English liberty was secured by constitutionally guaranteed checks and balances. Denouncing the whole notion of checks and balances, at least as far as the English constitution was concerned, Paine articulated the case for republican virtue as follows:


Theories of division of state power

There are different theories about how to differentiate the functions of the state (or types of government power), so that they may be distributed among multiple structures of government (usually called branches of government, or arms). There are analytical theories that provide a conceptual lens through which to understand the separation of powers as realized in real-world governments (developed by the academic discipline of comparative government); there are also
normative Normativity is the phenomenon in human societies of designating some actions or outcomes as good, desirable, or permissible, and others as bad, undesirable, or impermissible. A Norm (philosophy), norm in this sense means a standard for evaluatin ...
theories,On this distinction, see . both of
political philosophy Political philosophy studies the theoretical and conceptual foundations of politics. It examines the nature, scope, and Political legitimacy, legitimacy of political institutions, such as State (polity), states. This field investigates different ...
and
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in ...
, meant to propose a reasoned (not conventional or arbitrary) way to separate powers. Disagreement arises between various normative theories in particular about what is the (desirable, in the case of political philosophy, or prescribed, in the case of legal studies) allocation of functions to specific governing bodies or branches of government. How to correctly or usefully delineate and define the 'state functions' is another major bone of contention.


Legislation

The legislative function of the government broadly consists of authoritatively issuing binding rules.


Adjudication

The function of adjudication (judicial function) is the binding application of legal rules to a particular case, which usually involves creatively interpreting and developing these rules.


Execution

The executive function of government includes many exercises of powers in fact, whether in carrying into effect legal decisions or affecting the real world on its own initiative.


Additional types

Adjudicating constitutional disputes is sometimes conceptually distinguished from other types of power, because applying the often unusually indeterminate provisions of constitutions tends to call for exceptional methods to come to reasoned decisions. Administration is sometimes proposed as a hybrid function, combining aspects of the three other functions; opponents of this view conceive of the actions of administrative agencies as consisting of the three established functions being exercised next to each other merely in fact. Supervision and integrity-assuring activities (e.g., supervision of elections), as well as mediating functions (), are also in some instances regarded as their own type, rather than a subset or combination of other types. For instance, Sweden has four powers, judicial, executive, legislative and administrative branches. One example of a country with more than 3 branches is
Taiwan Taiwan, officially the Republic of China (ROC), is a country in East Asia. The main geography of Taiwan, island of Taiwan, also known as ''Formosa'', lies between the East China Sea, East and South China Seas in the northwestern Pacific Ocea ...
, which uses a five-branch system. This system consists of the
Executive Yuan The Executive Yuan () is the executive (government), executive branch of the government of the Republic of China (Taiwan). Under the Additional Articles of the Constitution of the Republic of China, amended constitution, the head of the Execut ...
,
Legislative Yuan The Legislative Yuan () is the unicameral legislature of the Republic of China (Taiwan) located in Taipei. The Legislative Yuan is composed of 113 members, who are directly elected for four-year terms by people of the Taiwan Area through a ...
,
Judicial Yuan The Judicial Yuan () is the Judiciary, judicial branch of the Republic of China.''See'' Constitution arts. 77-82, ''available at'' ''See'' Additional Articles of the Constitution art. 5, ''available at'' It functions as the Constitutional Cour ...
,
Control Yuan The Control Yuan is the supervisory and auditory branch of the government of the Republic of China, both during its time in mainland China and Taiwan. Designed as a hybrid of auditor and ombudsman by Taiwanese law, the Control Yuan holds th ...
, and Examination Yuan.


See also


References

* * * * * * *


Further reading

* Peter Barenboim,
Biblical Roots of Separation of Powers
', Moscow, Letny Sad, 2005. , Permalink
LC Catalog - Item Information (Full Record)
* Biancamaria Fontana (ed.),
The Invention of the Modern Republic
' (2007) * Bernard Manin,
Principles of Representative Government
' (1995; English version 1997) (hbk), (pbk) * José María Maravall and Adam Przeworski (eds),
Democracy and the Rule of Law
' (2003) (hbk), (pbk) * Paul A. Rahe

(2009) (hbk), (pbk) * Iain Stewart
"Men of Class: Aristotle, Montesquieu and Dicey on 'Separation of Powers' and 'the Rule of Law'"
4 ''Macquarie Law Journal'' 187 (2004) * Iain Stewart
"Montesquieu in England: his 'Notes on England', with Commentary and Translation"
(2002) * Alec Stone Sweet,
Governing with Judges: Constitutional Politics in Europe
' (2000) * Evan C. Zoldan,
Is the Federal Judiciary Independent of Congress?
', 70 Stan. L. Rev. Online 135 (2018).


External links






Notes


Explanatory notes


Citation footnotes

{{Authority control Constitutional law Philosophy of law Political science terminology Montesquieu Concepts in political philosophy